A comprehensive legal commentary authored by U.S.-based Gambian attorney Hon. Sarjo Barrow, Esq., has sparked renewed discussion regarding the Gambia Supreme Court’s 2021 ruling that denied constitutional immunity to former junta member Yankuba Touray in the case concerning the death of former Finance Minister Ousman Koro Ceesay.
In his analysis titled “Re-examining State v. Yankuba Touray (2021): Constitutional Immunity, Official Acts, and Fair Trial Guarantees,” Barrow recognizes the Court’s commendable efforts toward accountability within transitional justice. He suggests, however, that certain procedural aspects may warrant further reflection to ensure complete protection of fair trial rights.
The case relates to the 1995 death of Ceesay, allegedly due to violence during the early days of the AFPRC military junta led by Yahya Jammeh. Touray, a former Local Government Minister and AFPRC member, invoked immunity under Paragraph 13 of the Second Schedule to the 1997 Constitution, which protects acts performed in an official capacity.
In January 2021, the Supreme Court ruled against Touray’s claim, clarifying that immunity does not extend to serious crimes such as murder, citing relevant international law and constitutional rights. This decision paved the way for Touray’s trial, resulting in a conviction in July 2021 and an initial death sentence. The sentence was later upheld on appeal but commuted to life imprisonment in April 2025, considering the abolition of capital punishment.
Barrow, formerly an attorney and now serving as a U.S. Immigration Judge with the Department of Justice (all views expressed are personal), praises the outcome for advancing justice and accountability. He also offers a respectful critique of the Court’s methodology, noting that classifying the murder as non-official at the preliminary stage may have limited Touray’s ability to present his defense, potentially affecting procedural fairness fully.
He emphasizes that determining whether an act is ‘official’ involves both legal and factual considerations, including the accused’s role and use of state resources. By addressing this at an early stage, the Court might have inadvertently constrained the defense’s ability to fully argue its case, raising questions about adherence to fair-trial principles under Gambian law.
Barrow draws comparisons with relevant international jurisprudence. He references cases such as the International Criminal Tribunal for the former Yugoslavia’s Blaškić (2004), which recognized that serious offenses can sometimes be carried out under the guise of state authority, and the UK House of Lords’ Pinochet ruling (2000), which distinguished between official actions and violations that exceed official capacity.
He also mentions the U.S. Supreme Court’s recent Trump v. United States decision (2024), which clarified the scope of presidential immunity and underscored the importance of factual analysis in immunity determinations, suggesting that a similar careful examination should be undertaken in Gambian cases.
Furthermore, Barrow cautions against conflating “official” with “lawful,” stressing that actions taken in an official capacity are not automatically immune if they involve serious crimes. He highlights regional cases such as Nigeria’s Fawehinmi v. IGP and Ghana’s Tsikata v. Attorney-General, which favor detailed judicial scrutiny at the trial stage.
While acknowledging the Court’s reliance on established precedents such as Pinochet and the recognition of international law, Barrow advocates a more narrowly tailored interpretation of immunity provisions. He suggests that clarifying these limits and deferring factual determinations to trial courts would better serve principles of justice, fairness, and legitimacy.
He concludes that such an approach would strengthen accountability mechanisms, uphold procedural integrity, and support the foundational principles of transitional justice.
This commentary highlights the ongoing balance within post-Jammeh Gambia between advancing justice for past abuses—acknowledged by the Truth, Reconciliation, and Reparation Commission—and safeguarding constitutional protections. The finalization of Touray’s conviction represents a significant step toward accountability, but Barrow’s insights underscore the importance of procedural rigor to maintain judicial credibility.
Experts note that this critique aims not to excuse impunity but to ensure that immunity claims are examined with impartiality. As Gambia continues its transitional journey, scholarly contributions like Barrow’s underscore the need for a nuanced, balanced legal approach to reconcile past atrocities with the rule of law.
